620 F.3d 170 (3rd Cir. 2010), 07-3531, Lozano v. City of Hazleton

Docket Nº:07-3531.
Citation:620 F.3d 170
Opinion Judge:McKEE, Chief Judge.
Party Name:Pedro LOZANO; Humberto Hernandez; Rosa Lechuga; John Doe 1; John Doe 2; John Doe 3, a Minor, by His parents; Jane Doe 1; Jane Doe 2; Jane Doe 3; John Doe 4, a Minor by His parents, Brenda Lee Mieles; Casa Dominicana of Hazleton, Inc.; Hazleton Hispanic Business Association; Pennsylvania Statewide Latino Coalition; Jane Doe 5; John Doe 7; Jose Luis
Attorney:Witold J. Walczak, Esq. (ARGUED), American Civil Liberties Union of Pennsylvania, Pittsburgh, PA, Omar Jadwat, Esq. (ARGUED), Lee P. Gelernt, Esq., Jackson Chin, Esq., Foster Maer, Esq., Ghita Schwarz, Esq., Puerto Rican Legal Defense & Education Fund, New York, NY, Jennifer Chang, Esq., Lucas Gu...
Judge Panel:Before McKEE, Chief Judge, and NYGAARD and SILER,[*] Circuit Judges.
Case Date:September 09, 2010
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 170

620 F.3d 170 (3rd Cir. 2010)

Pedro LOZANO; Humberto Hernandez; Rosa Lechuga; John Doe 1; John Doe 2; John Doe 3, a Minor, by His parents; Jane Doe 1; Jane Doe 2; Jane Doe 3; John Doe 4, a Minor by His parents, Brenda Lee Mieles; Casa Dominicana of Hazleton, Inc.; Hazleton Hispanic Business Association; Pennsylvania Statewide Latino Coalition; Jane Doe 5; John Doe 7; Jose Luis Lechuga

v.

CITY OF HAZLETON, Appellant.

No. 07-3531.

United States Court of Appeals, Third Circuit.

September 9, 2010

Argued Oct. 30, 2008.

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Witold J. Walczak, Esq. (ARGUED), American Civil Liberties Union of Pennsylvania, Pittsburgh, PA, Omar Jadwat, Esq. (ARGUED), Lee P. Gelernt, Esq., Jackson Chin, Esq., Foster Maer, Esq., Ghita Schwarz, Esq., Puerto Rican Legal Defense & Education Fund, New York, NY, Jennifer Chang, Esq., Lucas Guttentag, Esq., San Francisco, CA, Thomas B. Fiddler, Esq., White & Williams, Ilan Rosenberg, Esq., Thomas G. Wilkinson, Jr., Esq., Cozen & O'Connor, Philadelphia, PA, Elena Park, Esq., Cozen & O'Connor, West Conshohocken, PA, Shamaine A. Daniels, Esq., Harrisburg, PA, for Plaintiffs-Appellees.

Kris W. Kobach, Esq. (ARGUED), Professor of Law, University of Missouri, Kansas City, MO, Harry G. Mahoney, Esq., Carla P. Maresca, Esq., Andrew B. Adair, Esq., Deasey Mahoney, Valentini & North, Philadelphia, PA, Elizabeth S. Gallaway, Esq., Mountain States Legal Foundation, Lakewood, CO, Michael M. Hethmon, Esq., Immigration Reform Law Institute, Washington, DC, for Defendant-Appellant.

Damon Scott, Florence, SC, Paul J. Orfanedes, Esq., James F. Peterson, Esq., Judicial Watch, Inc., Richard A. Samp, Esq., Washington Legal Foundation, Washington, DC, Andrew L. Schlafly, Esq., New York, NY, for Amicus Appellants.

Robin S. Conrad, Esq., National Chambers Litigation Center, Carter G. Phillips, Esq., Eric A. Shumsky, Esq., Sidley Austin, Kenneth J. Pfaehler, Esq., Sonnenschein, Nath & Rosenthal, John W. West, Esq., Bredhoff & Kaiser, Washington, DC, Burt M. Rublin, Esq., Ballard Spahr, Nancy Winkelman, Esq., Schnader Harrison Segal & Lewis, Philadelphia, PA, Diana S. Andsager, Esq., Mayer Brown, Chicago, IL, Charles D. Weisselberg, Esq., Berkley Law School, Berkley, CA, Jacob S. Pultman, Esq., Allen & Overy, Mark D. McPherson, Esq., Morrison & Foerster, New York, NY, for Amicus Appellees.

Before McKEE, Chief Judge, and NYGAARD and SILER,[*] Circuit Judges.

Page 175

OPINION

McKEE, Chief Judge.

TABLE OF CONTENTS
I. INTRODUCTION 175
II. FACTUAL AND PROCEDURAL BACKGROUND 176
A. Hazleton and its Ordinances 176
1. The Illegal Immigration Relief Act Ordinance 177
2. The Rental Registration Ordinance 180
B. The Plaintiffs 180
C. Procedural History 181
III. JURISDICTION AND STANDARD OF REVIEW 181
IV. SEVERABILITY AND STANDING 181
A. General Principles of Standing 183
B. Constitutional Standing 184
1. The Employment Provisions 184
2. Private Cause of Action 187
3. Housing Provisions 188
a. Landlord Plaintiffs 188
b. Tenant Plaintiffs 191
C. Prudential Standing 192
V. ANONYMITY AND CONFIDENTIALITY 194
VI. DISCUSSION 196
A. Federal Immigration Law 196
1. The Immigration and Nationality Act 196
2. The Immigration Reform and Control Act 198
3. The Illegal Immigration Reform and Immigrant Responsibility Act 200
B. State and Local Immigration Laws 201
C. Pre-emption 202
1. Employment Provisions 206
a. Presumption Against Pre-emption 206
b. Express Pre-emption 207
c. Conflict Pre-emption 210
2. Housing Provisions 219
VII. CONCLUSION 224
VIII. APPENDIX 224
A. The Illegal Immigration Relief Act Ordinance 224
B. Rental Registration Ordinance 231

I. INTRODUCTION " Since the late 19th century, the United States has restricted immigration into this country.... But despite the existence of these legal restrictions, a substantial number of persons have succeeded in unlawfully entering the United States, and now live within [the] various States." Plyler v. Doe, 457 U.S. 202, 205, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982). The dispute we are now called upon to address is one of an increasing number of cases that have arisen from actions that state and local governments have taken because of illegal immigration. Page 176 The City of Hazleton, Pennsylvania (" Hazleton" or the " City" ) is appealing a permanent injunction that the district court entered prohibiting Hazleton's enforcement of two local ordinances that attempt to regulate employment of, and provision of rental housing to, certain aliens. Several individuals and organizations sued to enjoin enforcement of the ordinances arguing that they violate the United States Constitution, as well as federal and state statutes. The district court agreed and enjoined Hazleton from enforcing the ordinances in their entirety. We now hold that the district court erred in reaching the merits of the challenge to the private cause of action provision because no plaintiff has standing to challenge that provision. Accordingly, that portion of the district court's order will be vacated. However, although our reasoning differs somewhat from the analysis used by the district court, we conclude that it correctly enjoined the rest of the challenged ordinances. We will therefore affirm the district court's order in all other respects. II. FACTUAL AND PROCEDURAL BACKGROUND A. Hazleton and its Ordinances The City of Hazleton is located in Luzerne County in northeastern Pennsylvania. Lozano v. City of Hazleton, 496 F.Supp.2d 477, 484 (M.D.Pa.2007). Under Pennsylvania law, Hazleton is classified as a City of the Third Class and operates under an " Optional Plan B" form of government. Id. Its executive is a mayor, and its legislature is a city council. Id. Hazleton's population was only 23,000 in 2000. Id. Between 2000 and the time of trial, however, its population increased to between 30,000 and 33,000. Id. Much of this growth was due to an influx of Latino families who migrated from New York and New Jersey to Pennsylvania in the early 2000s. Id. These newcomers included United States citizens and lawful permanent residents, as well as persons lacking lawful immigration status, who are often referred to as " undocumented immigrants" or " illegal aliens." 1 Id. Hazleton's mayor, as well as other local officials, subsequently concluded that aliens lacking lawful status were to blame Page 177 for certain social problems in the City, see J.A. 1672-85, and that the federal government could not be relied upon to prevent such aliens from moving into the City, or to remove them, see Lozano, 496 F.Supp.2d at 522 n. 44. Accordingly, City officials decided to take independent action to regulate the local effects of unlawful immigration. See J.A. 1385, 1486-87. Beginning on July 13, 2006, Hazleton's City Council began enacting a series of ordinances designed to address these concerns. Lozano, 496 F.Supp.2d at 484. This litigation concerns two of those ordinances: the Illegal Immigration Relief Act Ordinance (" IIRAO" ), which consists of Ordinance 2006-18, as amended by Ordinance 2006-40 and Ordinance 2007-6; and the Rental Registration Ordinance (" RO" ), which consists of Ordinance 2006-13.2 These ordinances attempt to regulate the employment of unauthorized aliens, and the provision of rental housing to aliens lacking lawful immigration status, within Hazleton. 1. The Illegal Immigration Relief Act Ordinance The IIRAO begins with a statement of findings and a declaration of purpose, which asserts:

[t]hat unlawful employment, the harboring of illegal aliens in dwelling units in the City of Hazleton, and crime committed by illegal aliens harm the health, safety and welfare of authorized U.S. workers and legal residents in the City of Hazleton. Illegal immigration leads to higher crime rates, subjects our hospitals to fiscal hardship and legal residents to substandard quality of care, contributed to other burdens on public services, increasing their cost and diminishing their availability to legal residents, and diminishes our overall quality of life.

IIRAO § 2C.3 In response to these concerns, the IIRAO:

seeks to secure to those lawfully present in the United States and this City, whether or not they are citizens of the United States, the right to live in peace free from the threat [of] crime, to enjoy the public services provided by this city without being burdened by the cost of providing goods, support and services to aliens unlawfully present in the United States, and to be free of the debilitating effects on their economic and social well being imposed by the influx of illegal aliens to the fullest extent that these goals can be achieved consistent with the Constitution and Laws of the United States and the Commonwealth of Pennsylvania.

IIRAO § 2F. Section 4 of the IIRAO asserts that it is unlawful " for any business entity" to " recruit, hire for employment, or continue to employ" or " permit, dispatch, or instruct Page 178 any person" who is an " unlawful worker" to perform work within Hazleton.4 IIRAO § 4A. Under the IIRAO, an " unlawful worker" is defined as: " a person who does not have the legal right or authorization to work due to an impediment in any provision of federal, state or local law, including but not limited to a minor disqualified by nonage, or an unauthorized alien as...

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